The Canadian Charter of Rights and Freedoms (French: Charte canadienne des droits et libertés), often simply referred to as the Charter in Canada, is a
civil rights of everyone in Canada from the policies and actions of all governments in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was proclaimed in force by Queen Elizabeth II of Canada
on April 17, 1982, as part of the Constitution Act, 1982.
The Charter was preceded by the Canadian Bill of Rights, enacted in 1960, which was a federal statute rather than a constitutional document. The Bill of Rights exemplified an international trend towards formalizing human rights protections following the United Nations' Universal Declaration of Human Rights,[1] instigated by the movement for human rights and freedoms that emerged after World War II.[2] As a federal statute, the Bill of Rights could be amended through the ordinary legislative process and had no application to provincial laws.[1] The Supreme Court of Canada also narrowly interpreted the Bill of Rights, showing reluctance to declare laws inoperative.[a] Between 1960 and 1982, only five of the thirty-five cases concerning the Bill of Rights that were heard by the Supreme Court of Canada resulted in a successful outcome for claimants.[1] The relative ineffectiveness of the Canadian Bill of Rights motivated many[who?] to improve rights protections in Canada. The British Parliament formally enacted the Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada in 1982, the result of the efforts of the government of Prime MinisterPierre Trudeau.
The Charter greatly expanded the scope of
judicial power
. The Charter applies only to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.
Under the Charter, people physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person (the Charter does not define the corporation as a "legal person"),
section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the Charter and might damage the reputation of the justice system. Section 32
confirms that the Charter is binding on the federal government, the territories under its authority, and the provincial governments.
Exceptions
Section 1 of the Charter, known as the limitations clause, allows governments to justify certain infringements of Charter rights. If a court finds that a Charter right has been infringed, it conducts an analysis under section 1 by applying the Oakes test, a form of proportionality review. Infringements are upheld if the government's objective in infringing the right is "pressing and substantial" in a "free and democratic society", and if the infringement can be "demonstrably justified".[3] The Supreme Court of Canada has applied the Oakes test to uphold laws against hate speech (e.g., in R v Keegstra) and obscenity (e.g., in R v Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.
In addition, some Charter rights are subject to the notwithstanding clause (
section 33). The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7 through 15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly.[4] In the past, the notwithstanding clause was invoked routinely by the province of Quebec (which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage,[5][b] respectively. In 2021, the government of Ontario under Premier Doug Ford invoked the notwithstanding clause in order to push through Bill 307, the Protecting Elections and Defending Democracy Act, doubling the amount of time election advertisements could run to 1 year from 6 months.[7][8] In 2006, the territory of Yukon also passed legislation that invoked the notwithstanding clause, but the legislation was never proclaimed in force.[9]
Rights and freedoms
The rights and freedoms enshrined in 34 sections of the Charter include:
Fundamental freedoms
Section 2
lists what the Charter calls "fundamental freedoms" namely
Generally, the right to participate in political activities and the right to a democratic form of government are protected:
Section 3
the right to
provincial and territorial legislative assemblies
.
Section 4
the maximum duration of the House of Commons and legislative assemblies is set at five years.
Section 5
an annual sitting of Parliament and legislatures is required.
Mobility rights
Section 6
protects the mobility rights of Canadian citizens which include the right to enter, remain in, and leave Canada. Citizens and permanent residents have the ability to move to and take up residence in any province to pursue gaining livelihood.
Legal rights
Rights of people in dealing with the justice system and law enforcement are protected:
Section 7
right to life, liberty, and security of the person.
equal treatment before and under the law, and equal protection and benefit of the law without discrimination.
Language rights
Generally, people have the right to use either the English or French language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws in the Charter include:
Section 16
English and French are the official languages of Canada and New Brunswick.
Section 16.1
the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.
Section 17
the right to use either official language in Parliament or the New Brunswick legislature.
Section 18
the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
Section 19
both official languages may be used in federal and New Brunswick courts.
Section 20
the right to communicate with and be served by the federal and New Brunswick governments in either official language.
Section 21
other constitutional language rights outside the Charter regarding English and French are sustained.
Section 22
existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. (Hence, if there are any rights to use
Aboriginal
languages anywhere they would continue to exist, though they would have no direct protection under the Charter.)
Minority language education rights
Section 23
rights for certain citizens belonging to French and English speaking minority communities to have their children educated in their own language.
Other sections
The remaining provisions help to clarify how the Charter works in practice.
states that the Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under
section 35
of the Constitution Act, 1982.
Section 26
clarifies that other rights and freedoms in Canada are not invalidated by the Charter.
Section 27
requires the Charter to be interpreted in a multicultural context.
Section 28
states all Charter rights are guaranteed equally to men and women.
clarifies the applicability of the Charter in the territories.
Section 31
confirms that the Charter does not extend the powers of legislatures.
Section 34
states that Part I of the Constitution Act, 1982, containing the first 34 sections of the Act, may be collectively referred to as the "Canadian Charter of Rights and Freedoms".
History
Many of the rights and freedoms that are protected under the Charter, including the rights to
Act of Parliament, applicable only to the federal government, and could be amended by a simple majority of Parliament. Moreover, the courts chose to interpret the Bill of Rights only sparingly, and only on rare occasions applied it to find a contrary law inoperative. Additionally, the Bill of Rights did not contain all of the rights that are now included in the Charter, omitting, for instance, the right to vote[12] and freedom of movement within Canada.[13]
The centennial of
Minister of Justice
. During these years, Strayer played a role in writing the bill that was ultimately adopted.
Constitution Act, 1982
Meanwhile, Trudeau, who had become Liberal leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal and provincial governments discussed creating one during negotiations for patriation, resulting in the Victoria Charter in 1971, which was never implemented. Trudeau continued his efforts, however, promising constitutional change during the 1980 Quebec referendum. He succeeded in 1982 with the passage of the Canada Act 1982 in the British Parliament, which enacted the Constitution Act, 1982 as part of the Constitution of Canada.